New Georgia Encyclopedia - Constitutional Historyhttp://www.georgiaencyclopedia.org/topics/constitutional-history
enWrit of Habeas Corpushttp://www.georgiaencyclopedia.org/articles/government-politics/writ-habeas-corpus
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"> <p>Georgia has played an influential role in the development of the "Freedom Writ" of habeas corpus, and its original constitution was the first in history to make access to the writ a constitutional right.</p>
<p>Once described by the great English scholar William Blackstone as "the most celebrated writ in the English law" and "the great and efficacious writ in all manner of illegal confinement," the writ of habeas corpus is a basic legal procedure by which individuals illegally imprisoned, or otherwise unlawfully restrained of their personal liberty, may by court order be liberated from their custody. The writ itself requires that a person restrained of his liberty be brought into court and that an explanation be provided as to why the person is in custody.</p>
<p>The writ of habeas corpus, whose origins may be traced to the fourteenth century, became an established part of the English common law by no later than 1600. The writ was therefore part of the law of England transported by the settlers into the thirteen colonies in North America, and was available in every one of those colonies.</p>
<h3>History of the Writ in Georgia</h3>
<p>There has never been a time when habeas corpus was unavailable in Georgia. Habeas corpus became part of the law of Georgia the moment the colony was founded in 1733, and there is documentary evidence that the writ was actually being issued in Georgia as early as 1743. During the entirety of Georgia's <a href="/articles/history-archaeology/trustee-georgia-1732-1752">colonial period</a> (1733 to 1776) both the common law writ of habeas corpus and the English Habeas Corpus of 1679 (a Parliamentary statute, extending to Georgia, which expanded the availability of the common law writ) were in effect in the colony.</p>
<p>Georgia's original constitution, adopted in 1777, was the first state constitution in history to make access to the writ a constitutional right, and every subsequent <a href="/articles/government-politics/georgia-constitution">Georgia constitution</a> has included a habeas corpus clause protecting the writ. At the 1787 Philadelphia Convention that framed the U.S. Constitution, Georgia's delegation voted against ever permitting the writ of habeas corpus to be suspended. From 1777 to 1863 the writ was authorized pursuant to (1) the habeas corpus clauses in the state's constitutions of 1777, 1789, 1798, and 1861, (2) various habeas corpus statutes passed by the <a href="/articles/government-politics/georgia-general-assembly">Georgia General Assembly</a>, and (3) the 1679 English habeas act (which continued to be in effect in Georgia after statehood). Since 1863 the writ of habeas corpus has been authorized in Georgia under the habeas corpus clauses in each of the state's constitutions and under the habeas provisions of the various Georgia Codes.</p>
<p>During the <a href="/articles/history-archaeology/civil-war-georgia-overview">Civil War</a> (1861-65) Georgia's political leaders, concerned about arrests of civilians by Confederate military authorities, loudly and repeatedly proclaimed their support for the writ of habeas corpus as a safeguard against abuse of the arrest power. Both Governor <a href="/articles/government-politics/joseph-e-brown-1821-1894">Joseph E. Brown</a> and the General Assembly vigorously condemned statutes passed by the Confederate Congress suspending the writ, while the <a href="/articles/government-politics/supreme-court-georgia">Supreme Court of Georgia</a> quietly defied those Confederate statutes by simply declining to regard the writ as suspended.</p>
<h3>Habeas Corpus Practice in Georgia</h3>
<p>At present the writ of habeas corpus in Georgia is constitutionally guaranteed by the Georgia Constitution of 1983, which provides: "The writ of habeas corpus shall not be suspended unless, in case of rebellion or invasion, the public safety may require it." The writ of habeas corpus is statutorily secured by Articles 1 and 2 of Chapter 14, Title 9, of the Georgia Code of 1981, and by miscellaneous other habeas corpus provisions sprinkled throughout the Code. Article 1 covers the general provisions of habeas corpus, and Article 2 addresses postconviction procedures of habeas.</p>
<p>The only two courts in Georgia with jurisdiction to issue writs of habeas corpus are the superior court and the probate court. Only the superior court, however, may grant writs of habeas corpus in extradition cases, capital cases, or postconviction cases.</p>
<p>In Georgia, a habeas corpus proceeding is a civil action, and the defendant (usually called the respondent) is the individual alleged to hold the plaintiff (usually called the petitioner) in unlawful custody. Generally, a habeas corpus proceeding is instituted by filing a petition for a writ of habeas corpus in the superior court or the probate court of the county in which the habeas petitioner is being detained. The petition must be in writing and signed under oath by the petitioner or someone acting in the petitioner's behalf. If it does not appear from the face of the petition and any documents annexed to the petition that the petitioner is unlawfully detained, the court will either dismiss the petition or afford the petitioner an opportunity to amend it.</p>
<p>If the court determines that the petition sufficiently alleges that the petitioner is unlawfully in custody, it issues a writ of habeas corpus requiring the respondent to produce the body of the petitioner in court and to explain why the petitioner is detained. If material facts bearing on the legality of the restraint on liberty are in dispute, the court, sitting without a jury, will conduct a hearing. If the court determines that the petitioner has proven by a preponderance of the evidence that the custody complained of is illegal, the court enters a final order releasing the petitioner or granting other appropriate relief. If the petitioner fails to prove his case, the court enters a final order dismissing the petition and remanding the petitioner to custody.</p>
<p>The final order of a probate court granting or denying habeas relief may be reviewed in superior court on a writ of certiorari, with the superior court's decision reviewable in the Georgia Supreme Court via a discretionary appeal (i.e., an appeal that takes place only if the Georgia Supreme Court in its discretion first grants permission to appeal). Where the habeas petition was originally filed in superior court, the final order of the superior court granting or denying relief is, except in postconviction cases, reviewable in the Georgia Supreme Court via a discretionary appeal. (The Court of Appeals of Georgia has no jurisdiction whatsoever in habeas corpus cases.)</p>
<h3>Habeas Corpus Cases in Georgia</h3>
<p>At present most Georgia habeas corpus proceedings fall into the following categories: (1) extradition cases, (2) civil commitment statute cases, (3) cases of pretrial confinement on criminal charges, and (4) postconviction cases. Historically, habeas corpus has been an appropriate vehicle for resolving child custody disputes in Georgia. However, a 1978 statute severely curtails the use of habeas corpus to litigate questions of child custody.</p>
<h4><subhead>Extradition, Civil Commitment, and Pretrial Confinement</subhead></h4>
<p>The Georgia Code specifically authorizes a person under arrest in Georgia whose extradition to another state is sought to apply for a writ of habeas corpus in a Georgia court. Habeas corpus relief is rarely granted in extradition cases, however, because the only issues open to litigation are whether the extradition documents on their face are in order, whether the petitioner is charged with a crime in the other state, whether the petitioner is the person named in the extradition request, and whether the petitioner is a fugitive from justice in the other state. The habeas petitioner is not permitted to introduce evidence that he is in fact not guilty of the offense for which extradition is sought.</p>
<p>With respect to civil commitment statutes, the Georgia Code authorizes persons committed to a state mental health facility to seek release at any time by filing a habeas petition in the appropriate court, and the Code also authorizes persons committed to a state tuberculosis hospital or facility to seek release by habeas corpus. Although habeas proceedings in behalf of civilly committed persons in Georgia do occasionally occur, they are not common.</p>
<p>Much more frequent in Georgia are habeas corpus proceedings brought by imprisoned criminal defendants who are awaiting trial. Pretrial habeas corpus may be used, for example, to raise claims that the arrested person has been denied a commitment hearing, or that at the commitment hearing the person was denied the assistance of counsel or some other constitutional right. Habeas corpus may also be used to raise a claim that a criminal defendant in pretrial custody was unlawfully refused bail, or that the amount of bail set was excessive.</p>
<h4><subhead>Postconviction</subhead></h4>
<p>Since around 1900 a majority of Georgia habeas corpus cases have been postconviction proceedings, and since 2004 there has been a statute of limitations on filing most petitions for postconviction habeas corpus relief. An indigent person who files a petition for postconviction habeas corpus relief in Georgia–and almost all petitioners for postconviction relief are indigent prison inmates–has no right to the appointment of counsel, even if the petitioner has been sentenced to death.</p>
<p>The Georgia Code provides that postconviction habeas relief may be granted if in the proceedings resulting in the conviction there was a substantial violation of the convicted person's federal or Georgia constitutional rights.</p>
<p>Under this provision, as construed by the Georgia courts, postconviction relief may be granted, in the first place, if at the habeas petitioner's criminal trial or guilty plea hearing there was a violation of the petitioner's constitutional rights rendering the conviction invalid. The constitutional claims most often raised in support of a contention that the conviction is unconstitutional are that the convicted person received ineffective assistance of counsel at his trial or hearing, or that the person was denied due process because at the criminal trial the prosecution suppressed exculpatory evidence or because the guilty plea was involuntary. In the second place, even if the conviction is deemed constitutional, a convicted person may still obtain habeas relief if the sentence is invalid because the person's constitutional rights were violated at sentencing or because the sentence imposes a punishment in excess of the lawful maximum for the offense. When the conviction is valid but the sentence is not, the form of relief granted usually consists of leaving the conviction undisturbed but requiring that the convicted person be resentenced. Finally, even if both the conviction and the sentence are valid, relief is nonetheless available if the habeas petitioner's custody pursuant to the conviction is unconstitutional on grounds unrelated to the conviction or sentence, as where the petitioner's probation was revoked in violation of a constitutional right.</p>
<p>Generally, however, a Georgia postconviction habeas corpus proceeding may not be used to litigate constitutional claims that could have been raised on direct appeal, or to relitigate claims that were considered and rejected on the direct appeal. Nor may habeas corpus generally be used to relitigate constitutional claims rejected in a previous habeas proceeding instituted by the petitioner.</p>
<p>A superior court order denying postconviction habeas corpus relief may not be appealed to the Georgia Supreme Court unless that court in its discretion agrees to allow the appeal, whereas the state may as a matter of right appeal an order granting postconviction relief.</p>
<p>Some postconviction habeas decisions of the Georgia Supreme Court have been nationally recognized as civil liberties milestones. In <em>Nelson v. Zant</em> (1991), for example, the court granted relief to an innocent person who had been imprisoned on death row for ten years following a trial at which the prosecutor in violation of due process had withheld exculpatory evidence. More recently, in <em>Humphrey v. Wilson</em> (2007), the court held that a mandatory ten-year prison sentence imposed on a teenager for having consensual sex with another teenager violated the constitutional right against cruel and unusual punishments.</p>
<p> </p>
</div></div></div><div class="field field-name-field-subcategories field-type-taxonomy-term-reference field-label-above"><div class="field-label">Categories:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/topics/constitutional-history" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Constitutional History</a></div></div></div><div class="field field-name-field-further-reading field-type-text-long field-label-above"><div class="field-label">Further Reading:&nbsp;</div><div class="field-items"><div class="field-item even">Donald E. Wilkes Jr., &quot;From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733-1865,&quot; &lt;i&gt;Georgia Law Review&lt;/i&gt; 45 (summer 2011): 1015-72.</div><div class="field-item odd">Donald E. Wilkes Jr., &quot;The Great Writ Hit: The Curtailment of Habeas Corpus in Georgia since 1967,&quot; &lt;i&gt;John Marshall Law Journal&lt;/i&gt; 7 (spring 2014): 415-526.</div><div class="field-item even">Donald E. Wilkes Jr., &quot;The Great Writ in the Peach State: Georgia Habeas Corpus, 1865-1965,&quot; &lt;i&gt;Journal of Southern Legal History&lt;/i&gt; 22 (2014): 233-300.</div><div class="field-item odd">Donald E. Wilkes Jr., &quot;A New Role for an Ancient Writ: Postconviction Habeas Corpus Relief in Georgia (Part I),&quot; &lt;i&gt;Georgia Law Review&lt;/i&gt; 8 (winter 1974): 313-62.</div><div class="field-item even">Donald E. Wilkes Jr., &quot;A New Role for an Ancient Writ: Postconviction Habeas Corpus Relief in Georgia (Part II),&quot; &lt;i&gt;Georgia Law Review&lt;/i&gt; 9 (fall 1974): 13-78.</div><div class="field-item odd">Donald E. Wilkes Jr., &quot;Postconviction Habeas Corpus Relief in Georgia: A Decade after the Habeas Corpus Act,&quot; &lt;i&gt;Georgia Law Review&lt;/i&gt; 12 (winter 1978): 249-73.</div><div class="field-item even">Donald E. Wilkes Jr., &quot;The Writ of Habeas Corpus in Georgia,&quot; &lt;i&gt;Georgia Bar Journal &lt;/i&gt; 12 (February 2007): 20-23.</div></div></div><div class="field field-name-field-index-title field-type-text field-label-above"><div class="field-label">Index Title:&nbsp;</div><div class="field-items"><div class="field-item even">Writ of Habeas Corpus</div></div></div><div class="field field-name-field-italicize-title field-type-list-boolean field-label-above"><div class="field-label">Italicize title:&nbsp;</div><div class="field-items"><div class="field-item even">no</div></div></div><div class="field field-name-field-georgia-performance-standa field-type-taxonomy-term-reference field-label-above"><div class="field-label">Georgia Performance Standards:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/georgia-performance-standards/ss8cg4" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8CG4</a></div></div></div>Thu, 29 Oct 2009 19:12:23 +0000dwilkes4170 at http://www.georgiaencyclopedia.orghttp://www.georgiaencyclopedia.org/articles/government-politics/writ-habeas-corpus#commentsReconstruction Conventionshttp://www.georgiaencyclopedia.org/articles/government-politics/reconstruction-conventions
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"> <p>Like <img src="/sites/default/files/m-10217.jpg" style="float: left;" />other Southern states not readmitted to the Union prior to the end of the <a href="/articles/history-archaeology/civil-war-georgia-overview">Civil War</a> (1861-65), Georgia had to adopt a new constitution under the rules of <a href="/articles/history-archaeology/reconstruction-georgia">Reconstruction</a>. In fact, the state went through this process twice, as attempts to reunite the Union during and after the Civil War became a prolonged two-part process that divided the executive and <a href="/articles/government-politics/legislative-process-overview">legislative</a> branches of the federal government. U.S. president Andrew Johnson's policies, known as Presidential Reconstruction, prevailed until the beginning of Congressional Reconstruction in 1867. During Congressional Reconstruction, Radical Republicans in both the House and Senate seized control of the program from the <a href="/articles/government-politics/executive-branch-overview">executive branch</a> and implemented much more rigid terms for bringing the former Confederate states back into the Union, as well as for the military occupation of the South.</p>
<p>A <a href="/articles/government-politics/constitutional-conventions">constitutional convention</a> in Georgia was held during both phases of the Reconstruction process as state leaders attempted to satisfy differing requirements by the federal government for returning to the Union. Both conventions assembled only under the guise of local authority since the Union government compelled their actions. Nevertheless, these meetings followed the protocols established by Georgians in previous years and allowed a degree of popular participation, though somewhat restricted by federal guidelines.</p>
<p>U.S. president Abraham Lincoln had proposed a plan of reconstruction as early as December 1863. Despite being objectionable to many Radical Republicans in Congress, his plan was relatively lenient on the seceded states that surrendered during his term. Lincoln's untimely death made restoration to the Union more difficult for those states determined to fight to the end. Georgia surrendered too late to qualify for Lincoln's terms for reunion and so was subject to Johnson's policies.</p>
<p>One of the distinctions between the Lincoln and Johnson plans was the requirement for a state convention. In October 1865, 294 delegates met in <a href="/articles/counties-cities-neighborhoods/milledgeville">Milledgeville</a> in pursuance of the Johnson plan. Qualifications for delegates were more restrictive than they had been in previous conventions due to federal requirements. Although all delegates had to meet the same criteria required for the <a href="/articles/history-archaeology/georgia-secession-convention-1861">Georgia Secession Convention of 1861</a>, they were additionally required to take an oath of loyalty accepting the U.S. Constitution, all federal laws, and the <a href="/articles/history-archaeology/emancipation">Emancipation Proclamation</a>. Excluded from the outset were any citizens who had held high office or position within the Confederacy. Thus most of Georgia's prominent political leaders at the time could not participate. A major exception was <a href="/articles/government-politics/herschel-johnson-1812-1880">Herschel Johnson</a>, who initially opposed <a href="/articles/history-archaeology/secession">secession</a> in 1861 but succumbed to majority pressure. Johnson, in fact, became the president of the 1865 convention.</p>
<p>The delegates assembled and, as charged by Johnson's plan, took up the business of rejoining the Union. They abolished <a href="/articles/history-archaeology/slavery-antebellum-georgia">slavery</a> by ratifying the Thirteenth Amendment, repealed (rather than nullified, as technically required under Johnson's plan) the state's Ordinance of Secession, repudiated Georgia's war debt, and wrote a new <a href="/articles/government-politics/georgia-constitution">constitution</a>. (The choice to "repeal" rather than "nullify" indicates a defiant statement of the state's right to secede, even though many participating in the 1865 convention opposed secession in 1861.) After the convention, Johnson considered <img src="/sites/default/files/m-10218.jpg" style="float: right;" />Georgia to be reconstructed. By engaging in all of the required activities beyond constitution making, the convention did not conform to the strict definition of a constitutional convention. In this way it was not unlike previous Georgia conventions, such as the convention of 1850 and the Secession Convention, in which other measures were discussed or adopted.</p>
<p>By 1867 tensions between Johnson and the Republicans in Congress had become a power struggle on the national stage. Congress wrested control of Reconstruction from the president and determined a stricter course for those southern states in which white supremacy still maintained a system akin to slavery. In much of the South, including Georgia, state and local leaders denied freed slaves their <a href="/articles/history-archaeology/civil-rights-movement">civil rights</a>, especially their access to political participation. Congressional reports of blatant southern hostilities to <a href="/articles/history-archaeology/unionists">Unionists</a> and northerners in general fueled Republican efforts to design a military plan of reconstructing unrepentant southerners.</p>
<p>Georgia, now coming under firm military control by the federal government, prepared for another convention in 1867 to comply with the dictates of Congressional Reconstruction. The process of calling this meeting was unusual for the state in a number of respects. First, the military conducted massive voter registrations to include black males of the same eligibility as white males. Any white males who had ever been disfranchised for disloyalty to the United States could not register. Once this process was complete, eligible voters, black and white, went to the polls to choose whether or not to hold a convention and, if one was to be held, to select delegates to it. Since many conservative white voters boycotted the polls, first-time black voters primarily determined the outcome. Blacks voted overwhelmingly in favor of a convention and chose many of the delegates. White conservatives, dissatisfied with the outcome, called their own convention in early December to try and counter Republican momentum. Their efforts failed as the convention, <img src="/sites/default/files/m-800.jpg" style="float: right;" />unable to muster enough conservative interest, was thus not representative of the state, with only about half of the counties sending delegates.</p>
<p>In December 1867 the federally sanctioned convention met in Atlanta and remained assembled until March 1868. Of the 169 delegates, 37 were black. Republicans, moderate and radical, dominated the convention over the dozen white traditional conservatives. As directed by congressional Reconstruction Acts, the convention proposed a new constitution that included <a href="/articles/government-politics/black-suffrage-twentieth-century">suffrage for black males</a>. Also in compliance with congressional rules, the document required popular ratification before being implemented as the fundamental law of the state. In April 1868 Georgia voters approved the new constitution and elected a new government.</p>
<p>The Georgia Reconstruction conventions demonstrate the enormous fluidity in the use of conventions to address matters beyond constitution making. The federal mandates imposed upon them also raise questions about the boundaries between national and state sovereignty. Almost a decade later, in the Georgia <a href="/articles/government-politics/constitutional-convention-1877">Constitutional Convention of 1877</a>, the state reasserted its power to conduct and control both the process and the content of its own conventions.</p>
</div></div></div><div class="field field-name-field-subcategories field-type-taxonomy-term-reference field-label-above"><div class="field-label">Categories:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/topics/constitutional-history" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Constitutional History</a></div><div class="field-item odd"><a href="/topics/civil-war-reconstruction-events" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil War &amp; Reconstruction Events</a></div></div></div><div class="field field-name-field-further-reading field-type-text-long field-label-above"><div class="field-label">Further Reading:&nbsp;</div><div class="field-items"><div class="field-item even">Allan Conway, &lt;i&gt;The Reconstruction of Georgia&lt;/i&gt; (Minneapolis: University of Minnesota Press, 1966). </div><div class="field-item odd">Albert Berry Saye, &lt;i&gt;A Constitutional History of Georgia, 1732-1968&lt;/i&gt;, rev. ed. (Athens: University of Georgia Press, [1970]). </div><div class="field-item even">C. Mildred Thompson, &lt;i&gt;Reconstruction in Georgia : Economic, Social, Political, 1865-1872&lt;/i&gt; (Savannah, Ga.: Beehive Press, [1972]). </div></div></div><div class="field field-name-field-index-title field-type-text field-label-above"><div class="field-label">Index Title:&nbsp;</div><div class="field-items"><div class="field-item even">Reconstruction Conventions</div></div></div><div class="field field-name-field-italicize-title field-type-list-boolean field-label-above"><div class="field-label">Italicize title:&nbsp;</div><div class="field-items"><div class="field-item even">no</div></div></div><div class="field field-name-field-georgia-performance-standa field-type-taxonomy-term-reference field-label-above"><div class="field-label">Georgia Performance Standards:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/georgia-performance-standards/ss8h6" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8H6</a></div></div></div>Thu, 10 Aug 2006 18:40:36 +0000gjustice2939 at http://www.georgiaencyclopedia.orghttp://www.georgiaencyclopedia.org/articles/government-politics/reconstruction-conventions#commentsGeorgia Secession Convention of 1861http://www.georgiaencyclopedia.org/articles/history-archaeology/georgia-secession-convention-1861
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"> <p>The Georgia Secession Convention of 1861 represents the pinnacle of the state's political sovereignty. With periodic interruptions, the convention met in <a href="/articles/counties-cities-neighborhoods/milledgeville">Milledgeville</a> from January 16 to March 23, 1861, and not only voted to secede the state from the Union but also created Georgia's first new <a href="/articles/government-politics/georgia-constitution">constitution</a> since 1798. Politically the convention was a watershed event that hastened the <a href="/articles/history-archaeology/civil-war-georgia-overview">Civil War</a> (1861-65) and dramatically changed the course of <a href="/articles/history-archaeology/georgia-history-overview">Georgia history</a>.</p>
<p>The idea of state <a href="/articles/history-archaeology/secession">secession</a> emerged in the late eighteenth century as tensions developed over the interpretations of state versus federal powers as enumerated by the U.S. Constitution. Earlier conventions, including various nullification conventions in the 1830s and the southern conventions surrounding the crisis over <a href="/articles/history-archaeology/slavery-antebellum-georgia">slavery</a> in 1850, considered the act of leaving the Union. Still, none adopted an official proclamation until the South Carolina Secession Convention in December 1860.</p>
<p>The<img src="/sites/default/files/m-10001.jpg" style="float: left;" /> escalating sectional crises over slavery in the 1850s contributed to the volatile tensions that arose during the 1860 presidential campaign. Abraham Lincoln's election in November of that year caused a fiery backlash in the southern states, which feared the abolitionist policies of the Republican Party. The result was a series of state conventions across the South, beginning with South Carolina's in December. The fifth such convention occurred in Georgia, a pivotal state in the debate due to its geographic importance to the region, the stature of its congressional delegation as leading voices for southern grievances, and its economic value as a major <a href="/articles/business-economy/cotton">cotton</a> producer.</p>
<p>On January 2, 1861, a miserably rainy day, Georgia voters went to the polls and selected delegates to a convention that would decide the state's response to Lincoln's election. In many counties the candidates divided along two divergent views. Immediate secessionists advocated leaving the Union without further consideration. Cooperationists, however, tended to be more conciliatory. Their opinions ranged from maintaining a devout Unionism, to desiring a scheme in which the South acted in unison, to advocating a delay of the act of secession. Low voter turnout due to the poor weather may have affected the election's outcome, but the immediate secessionists finished with a slight majority of delegates. Political speeches, <a href="/articles/history-archaeology/nineteenth-century-georgia-newspapers">newspapers</a>, and the contentiousness of state leaders reveal the deep divisions over the issue of secession at that time.</p>
<p>Once the delegates convened in Milledgeville on January 16, they wasted little time in testing the mood of the convention. After the rules and procedures for the meeting were established on the first day, countering proposals alternated between such immediate secessionists as <a href="/articles/history-archaeology/eugenius-nisbet-1803-1871">Eugenius A. Nisbet</a> and cooperationists like <a href="/articles/government-politics/herschel-johnson-1812-1880">Herschel Johnson</a>. Early votes indicated that there might be a close contest: one resolution demonstrated that the split between the immediate secessionists and the cooperationists was as close as 166 to 130 respectively. In the end, however, the final vote on January 19 revealed a major shift in the convention for immediate secession, when the cooperationists<img src="/sites/default/files/m-2431.jpg" style="float: right;" /> failed by a tally of 208 to 89. With this vote at two o'clock in the afternoon, the convention president, <a href="/articles/government-politics/george-w-crawford-1798-1872">George W. Crawford</a>, proclaimed Georgia officially seceded from the Union. Celebrations across the state drowned any lingering <a href="/articles/history-archaeology/civil-war-dissent">dissent</a> from cooperationists or Union loyalists.</p>
<p>The delegates reconvened on January 21 to begin a new phase of the convention—that of writing a new constitution for the state. In many aspects the Georgia Constitution of 1861 resembled that of the Constitution of 1798. There were, nevertheless, some notable differences. The 1861 document made specific provisions for the protection of slavery in the state. The new constitution also took away the amending power of the <a href="/articles/government-politics/georgia-general-assembly">assembly</a> and gave it solely to a <a href="/articles/government-politics/constitutional-conventions">constitutional convention</a> chosen by the people of Georgia specifically for that purpose.</p>
<p>The convention adjourned temporarily to allow a committee time to write the new constitution and to await the outcome of the Confederate Convention at Montgomery, Alabama, in February 1861. Reconvened in March, the Georgia Secession Convention, now a constitutional convention, ratified the new Confederate Constitution and voted to submit the new Georgia constitution to the people by ballot in July. The delegates adjourned for the last time on March 23, 1861. Nearly three weeks later, on April 12, Confederate batteries fired on federal troops at Fort Sumter, in South Carolina, and thus began hostilities in the Civil War.</p>
</div></div></div><div class="field field-name-field-subcategories field-type-taxonomy-term-reference field-label-above"><div class="field-label">Categories:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/topics/civil-war-reconstruction-events" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil War &amp; Reconstruction Events</a></div><div class="field-item odd"><a href="/topics/constitutional-history" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Constitutional History</a></div></div></div><div class="field field-name-field-further-reading field-type-text-long field-label-above"><div class="field-label">Further Reading:&nbsp;</div><div class="field-items"><div class="field-item even">Barry L. Brown and Gordon R. Elwell, &lt;a href=&quot;http://www.ugapress.org/index.php/books/crossroads_of_conflict/&quot;&gt;&lt;i&gt;Crossroads of Conflict: A Guide to Civil War Sites in Georgia&lt;/i&gt;&lt;/a&gt; (Athens: University of Georgia Press, 2010). </div><div class="field-item odd">Anthony Gene Carey, &lt;i&gt;Parties, Slavery, and the Union in Antebellum Georgia&lt;/i&gt; (Athens: University of Georgia Press, 1997).</div><div class="field-item even">William W. Freehling and Craig M. Simpson, eds., &lt;i&gt;Secession Debated: Georgia&#039;s Showdown in 1860&lt;/i&gt; (NewYork: Oxford University Press, 1992).</div><div class="field-item odd">Michael P. Johnson, &lt;i&gt;Toward a Patriarchal Republic: The Secession of Georgia&lt;/i&gt; (Baton Rouge: Louisiana State University Press, 1977).</div><div class="field-item even">Horace Montgomery, &lt;i&gt;Cracker Parties&lt;/i&gt; (Baton Rouge: Louisiana State University Press, [1950]).</div><div class="field-item odd">Albert Berry Saye, &lt;i&gt;A Constitutional History of Georgia, 1732-1968&lt;/i&gt;, rev. ed. (Athens: University of Georgia Press, [1970]).</div><div class="field-item even">David Williams, &lt;i&gt;Bitterly Divided: The South&#039;s Inner Civil War&lt;/i&gt; (New York: New Press, 2008; distributed by W. W. Norton).</div></div></div><div class="field field-name-field-index-title field-type-text field-label-above"><div class="field-label">Index Title:&nbsp;</div><div class="field-items"><div class="field-item even">Georgia Secession Convention of 1861</div></div></div><div class="field field-name-field-italicize-title field-type-list-boolean field-label-above"><div class="field-label">Italicize title:&nbsp;</div><div class="field-items"><div class="field-item even">no</div></div></div><div class="field field-name-field-georgia-performance-standa field-type-taxonomy-term-reference field-label-above"><div class="field-label">Georgia Performance Standards:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/georgia-performance-standards/ss8h6" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8H6</a></div></div></div>Thu, 10 Aug 2006 18:33:49 +0000gjustice4073 at http://www.georgiaencyclopedia.orghttp://www.georgiaencyclopedia.org/articles/history-archaeology/georgia-secession-convention-1861#commentsConstitutional Conventionshttp://www.georgiaencyclopedia.org/articles/government-politics/constitutional-conventions
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"> <p>Constitutional conventions are a distinctly American political innovation, first appearing during the era of the <a href="/articles/history-archaeology/revolutionary-war-georgia">Revolutionary War</a> (1775-83). Georgia was among the first states to use a meeting of delegates to create a <a href="/articles/government-politics/georgia-constitution">constitution</a>. In October 1776, just three months after the American colonies declared independence from Great Britain, Georgia's first constitutional convention met and produced the state's inaugural constitution, known as the Constitution of 1777. Several other states also chose the convention method as a means of adopting new constitutions, while some used their provincial congresses to frame a founding document for a new <a href="/articles/government-politics/government-and-laws-overview">state government</a>.</p>
<h3>Eighteenth-Century Conventions</h3>
<p>At issue regarding these different methods was the legitimacy of the constitution-making process. Whig ideas about proper representation in government, effective checks on political power, and popular sovereignty informed American efforts to establish independent colonial governments during the Revolution. Because the colonists questioned the legitimacy of Parliament's rule over America, the issue was vital to the creation of their own self-government. Constitutional conventions became one method of establishing fundamental law through participation by the voters. Slow to evolve in process and form, these conventions demonstrated the important distinction between regular legislation and constitutional change.</p>
<p>Georgia's first convention called for a delegation of representatives from twelve parishes (the basis for the governmental units that became counties) as well as from the towns of <a href="/articles/counties-cities-neighborhoods/savannah">Savannah</a> and Sunbury. The delegates' objective was to replace the Rules and Regulations of 1776, which had served merely as an expedient and temporary charter during heightened hostilities in April 1776. The convention met in Savannah on the first Tuesday in October and adopted Georgia's first official constitution. As written constitutions were a novelty under British systems of government, the delegates had enough foresight to anticipate that amendments and revisions might be necessary. To this end the Constitution of 1777 provided that another convention could be called by the people for the purpose of altering the document only if petitions calling for such changes emanated from a majority of the state's counties and were signed by a majority of voters within each county. Otherwise, the <a href="/articles/government-politics/georgia-general-assembly">General Assembly</a> would determine if a convention were necessary.</p>
<p>Thus Georgia established a state convention, which became a standard practice for constitution making in the United States into the twentieth century. By the end of the American Revolution, most of the existing states had utilized a constitutional convention of one form or another. By 1787 another role had developed for these gatherings—the ratification of the Constitution of the United States and its ten amendments. The ratification of the U.S. Constitution took place in state conventions as called for by the U.S. Congress, which was still under the authority of the Articles of Confederation. (The convention method has only been used once to ratify a federal amendment.)</p>
<p>During a special convention in <a href="/articles/counties-cities-neighborhoods/augusta">Augusta</a>, Georgia ratified the U.S. Constitution on January 2, 1788. In addition to resolving problems caused by the Articles of Confederation's weak central government, Georgia lawmakers had a special interest in ratifying the new constitution. They hoped that a stronger central government would help the state in its negotiations with the <a href="/articles/history-archaeology/creek-indians">Creek Indians</a>, who still claimed large parts of the state as their own. That same year, Georgia began to seriously consider amending the state Constitution of 1777.</p>
<p>The democratic ideals fostered by the American Revolution promoted a widespread insistence for government accountability and greater political participation by the citizenry. Constitutional conventions became an important element of implementing these ideals. The state began to retool its constitutional process in the conventions of 1788 and 1789 to give it more popular legitimacy and to secure confidence in the process, particularly through reforms that encouraged greater participation by Georgia voters. On November 4, 1788, a constitutional convention met in Augusta to modify the Constitution of 1777. Using the recently ratified U.S. Constitution as a model, the convention discarded the old state charter and drew up an entirely new document. This initial action parallels the actions of the Philadelphia national convention in 1787. Both meetings disregarded instructions from the established legislatures and embarked on a rewriting of fundamental law. In doing so, both conventions deliberately exceeded their designated authority.</p>
<p>Once the new constitution was complete, the Georgia convention followed its own mandate of submitting its work to voters for ratification through a second convention, to which delegates were elected by the people in December 1788. This second convention convened in Augusta on January 4, 1789. It too exceeded its mandate from the Georgia General Assembly. Instead of merely rejecting or ratifying the new constitution, the delegates embarked upon a rigorous inspection of the document and then proceeded to revise it. Upon completion the legislature once again called for counties to elect delegates, this time to a third convention for the purpose of finally ratifying the proposed (and revised) constitution. On May 6, 1789, this third meeting in Augusta adopted the Georgia Constitution of 1789. That this document resulted from three separate conventions reflects both the ambiguities of the convention process in American history and the influence of certain revolutionary ideals on political practices in the early Republic.</p>
<p>The Constitution of 1789 called for the state to hold elections in 1794 for delegates to yet another constitutional convention. On the first Monday in May 1795, representatives met in Louisville to consider amendments to the state constitution. With only a few modifications, including changes to apportionment and procedural activities in the legislature, the convention adjourned after two weeks on May 16. It also designated <a href="/articles/counties-cities-neighborhoods/louisville">Louisville</a> as the permanent <a href="/articles/government-politics/georgias-historic-capitals">state capital</a>, an act that seemingly could have been accomplished by regular legislation. The amendments went into force without popular ratification.</p>
<p>Before leaving, the delegates provided for another convention to meet on the second Tuesday in May 1798, with each county required to send three delegates. This convention met in Louisville on the heels of the <a href="/articles/history-archaeology/yazoo-land-fraud">Yazoo Land Fraud</a>, which involved dishonest land speculation, bribery of state officials, and blatant <a href="/articles/government-politics/legislative-process-overview">legislative</a> corruption. The political agitation provoked by this scandal informed the character and proceedings of the 1798 convention and inspired an entirely new constitution. The resulting document placed notable limitations on the legislature's power over the sale of public lands and modified the procedures for constitutional revisions. It dismissed the convention method and granted the amending power to the General Assembly. In essence, before amendments could be in force, they would have to pass both houses of the legislature by two-thirds vote, be published before the next state elections, and be approved by two-thirds vote of the new houses. Such a process still afforded voters a measure of participation in potential changes to the fundamental law of the state.</p>
<h3>Nineteenth-Century Conventions</h3>
<p>Georgia amended the Constitution of 1798 twenty-three times. Although the state constitution omitted any mention of constitutional assemblies, the state still resorted to the convention method on occasion. While a special convention in 1821 was denied by popular referendum, the legislature attempted constitutional reform in 1833 and 1839 by calling for a convention. Both conventions were contentious sessions involving new schemes for representation in the Georgia assembly. The resulting proposals from each failed to satisfy Georgia voters and thus were unsuccessful. As a result Georgia amended the 1798 Constitution without the convention method until 1861. The only other attempt at popular referendum came in 1840, when the General Assembly submitted to voters a preference for either annual or biennial legislative sessions. Voters favored biennial meetings, and subsequently the General Assembly, using the legislative procedure provided in the 1798 Constitution, passed an amendment to that effect.</p>
<p>In 1850 state conventions took on another role. As sectional tensions over <a href="/articles/history-archaeology/slavery-antebellum-georgia">slavery</a> took center stage nationally, Georgia and several other southern states became concerned enough to call special conventions in 1850 to articulate their grievances. The Georgia State Convention of 1850 brought together popularly elected delegates from each county to decide whether or not the state should secede from the Union. It was, in fact, a turning point in that crisis. The convention took a moderate rather than radical stance through a document entitled the <a href="/articles/history-archaeology/georgia-platform">Georgia Platform</a>, which noted Georgia's general discontent with national trends toward slavery but its willingness to remain in the Union as long as no future federal policies encroached on the state's rights in these matters. Georgia's political, economic, and geographical importance to southern solidarity helped to defuse the <a href="/articles/history-archaeology/secession">secession</a> crisis at that time. This meeting, however, set the precedent for the <a href="/articles/history-archaeology/georgia-secession-convention-1861">Georgia Secession Convention of 1861</a>.</p>
<p>The political crises throughout the 1850s and the election of Abraham Lincoln as president in 1860 produced a frenzy of responses across the South. In December 1860 the Georgia legislature called for another special convention to determine the state's relation to the Union. Once again, popularly elected delegates met in January 1861, but this time they voted in favor of secession. The assembly then immediately became a constitutional convention, drafted a new constitution, and submitted it to the people for ratification. (It is interesting to note that the convention did not submit the Ordinance of Secession for popular sanction.) The Georgia Secession Convention of 1861 thus combined both a constitutional duty and an official political forum for state-federal relations into one mechanism. It would be the first and last of its kind.</p>
<p>Georgia has held only three constitutional or official state conventions since 1861. Two of the three were <a href="/articles/government-politics/reconstruction-conventions">Reconstruction conventions</a>, held to meet requirements by the federal government for the state's readmission to the Union. These meetings, in 1865 and 1867-68, were responsible for the political rebuilding of Georgia following the <a href="/articles/history-archaeology/civil-war-georgia-overview">Civil War</a> (1861-65). The constitutional convention of 1865 met in accordance with instructions from U.S. president Andrew Johnson and proceeded to adopt a new state constitution abolishing slavery in Georgia. After Congress assumed responsibility for <a href="/articles/history-archaeology/reconstruction-georgia">Reconstruction</a>, Georgia called another convention in 1867 for the purpose of rewriting the state constitution to extend <a href="/articles/government-politics/black-suffrage-twentieth-century">suffrage to black males</a>, as mandated by Congress. Although these assemblies also addressed other changes to the state constitution, they were called primarily as the result of the Southern defeat in the Civil War and the resulting federal Reconstruction policies.</p>
<p>Georgia's final constitutional convention (to date) gathered to write a new constitution following Reconstruction. In July 1877 delegates from across the state met in <a href="/articles/counties-cities-neighborhoods/atlanta">Atlanta</a> to draw up a constitution free from the constraints mandated by Congressional Reconstruction. The result was the Georgia Constitution of 1877, which was, for the first time since 1861, submitted for popular ratification. This document remained in force, with numerous amendments, until 1945, when Georgia abandoned the convention method of constitution making in favor of the constitutional commission, which had grown in popularity.</p>
<p>The state convention in Georgia played a crucial role in the history and growth of the state, and its influence extended into the twentieth century. From its Revolutionary War origins to its modern disappearance, the convention provided a forum for political participation outside the normal structures of state governance. Sometimes inconsistently conducted and often manipulated to certain ends, it was a mechanism that could offer legitimacy to the state's fundamental law through popular participation and ratification at a time when Georgia was in its earliest stages of development.</p>
</div></div></div><div class="field field-name-field-subcategories field-type-taxonomy-term-reference field-label-above"><div class="field-label">Categories:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/topics/constitutional-history" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Constitutional History</a></div><div class="field-item odd"><a href="/topics/revolution-early-republic-events" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Revolution &amp; Early Republic Events</a></div></div></div><div class="field field-name-field-further-reading field-type-text-long field-label-above"><div class="field-label">Further Reading:&nbsp;</div><div class="field-items"><div class="field-item even">Walter McElreath, &lt;i&gt;A Treatise on the Constitution of Georgia Giving the Origin, History and Development of the Fundamental Law of the State&lt;/i&gt; (Atlanta: Harrison Company, 1912).</div><div class="field-item odd">Albert Berry Saye, &lt;i&gt;A Constitutional History of Georgia, 1732-1968&lt;/i&gt;, rev. ed. (Athens: University of Georgia Press, [1970]).</div><div class="field-item even">Ethel K. Ware, &lt;i&gt;A Constitutional History of Georgia&lt;/i&gt; (New York: Columbia University Press, 1947; reprint, New York: AMS Press, 1967).</div></div></div><div class="field field-name-field-index-title field-type-text field-label-above"><div class="field-label">Index Title:&nbsp;</div><div class="field-items"><div class="field-item even">Constitutional Conventions</div></div></div><div class="field field-name-field-italicize-title field-type-list-boolean field-label-above"><div class="field-label">Italicize title:&nbsp;</div><div class="field-items"><div class="field-item even">no</div></div></div><div class="field field-name-field-georgia-performance-standa field-type-taxonomy-term-reference field-label-above"><div class="field-label">Georgia Performance Standards:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/georgia-performance-standards/ss8h4" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8H4</a></div></div></div>Thu, 10 Aug 2006 18:32:43 +0000gjustice4072 at http://www.georgiaencyclopedia.orghttp://www.georgiaencyclopedia.org/articles/government-politics/constitutional-conventions#commentsConstitutional Convention of 1877http://www.georgiaencyclopedia.org/articles/government-politics/constitutional-convention-1877
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"> <p>The Georgia Constitutional Convention of 1877 created the state's seventh <a href="/articles/government-politics/georgia-constitution">constitution</a>. Ratified at the end of <a href="/articles/history-archaeology/reconstruction-georgia">Reconstruction</a> (1867-76) with a firm Democratic majority in power, the Constitution of 1877 was a reaction to the perceived abuses of the Republican-dominated government that controlled the state after the <a href="/articles/history-archaeology/civil-war-georgia-overview">Civil War</a> (1861-65). This document included many of the provisions of the Constitution of 1868, but it succeeded in changing the power of the <a href="/articles/government-politics/georgia-general-assembly">legislature</a> and the state's power to tax. It also implemented provisions supporting <a href="/articles/history-archaeology/segregation">segregation</a>.</p>
<h3>1877 Convention</h3>
<p>Many Georgians viewed the Constitution of 1868 as a product of Northern Republicans who moved south after the war. With the Democratic Party fully back in control of the <a href="/articles/government-politics/government-and-laws-overview">state government</a>, the legislature passed a bill in 1877 calling for a referendum to hold a new <a href="/articles/government-politics/constitutional-conventions">constitutional convention</a>. The measure passed, and 193 delegates met on July 11, 1877, in <a href="/articles/counties-cities-neighborhoods/atlanta">Atlanta</a> to draft the new constitution. Led by former governor <a href="/articles/government-politics/charles-jones-jenkins-1805-1883">Charles Jones Jenkins</a> and supported by <a href="/articles/history-archaeology/robert-toombs-1810-1885">Robert Toombs</a>, the constitutional convention adjourned on August 25 with a 115-page document, which voters ratified in December.</p>
<p>Using the Constitution of 1868 as a template, the convention formed committees to discuss each of that document's thirteen articles. A fourteenth group, the Committee on Revision, was also created, with two delegates from each of the other thirteen committees serving on it.</p>
<h3>Major Changes</h3>
<p>Perhaps the greatest change from the 1868 Constitution was in the power of the state to tax its citizens. Concerned about the economic depressions of the 1870s and the abuses of the Reconstruction government on the state treasury, a majority of delegates formed an economic faction that supported lower taxes and restrictions to curb state expenditures (by cutting, among other things, the salaries of judges and other state officials). Article 7 restricted the use of tax money to support the state government, pay the <a href="/articles/government-politics/capital-budgeting-and-state-debt">public debt</a>, support education, defend against insurrection and invasion, and provide artificial limbs for ex-Confederate soldiers injured during the Civil War.</p>
<p>Restricted too was the amount of debt the state, cities, and counties could accumulate. This fear of debt limited the state's industrial potential since the constitution denied state encouragement to private enterprises through tax subsidies and other supportive measures. Favoring the status quo instead of vigorously promoting industrialization caused Georgia to lag behind other states during the ensuing industrial revolution.</p>
<p>The new constitution also decreased the power of the <a href="/articles/government-politics/governor">governor</a> while increasing the power of the legislature. The governor's term was decreased from four years to two years, and a two-term limit, by which one could run for a third and fourth term only after four years had elapsed, was instituted. The term of office for senators was changed from four years to two years to match that for legislators in the House of Representatives. The governor also lost the power to appoint (with the consent of the Senate) judges, the <a href="/articles/government-politics/attorney-general">attorney general</a>, and solicitors general. The General Assembly gained appointive power over all these offices with the exception of attorney general, which became a popularly elected office.</p>
<p>The <a href="/articles/government-politics/judicial-branch-overview">judicial system</a> also changed with the elimination of district courts and the enactment of six-year terms for the three appointed members of the <a href="/articles/government-politics/supreme-court-georgia">Georgia Supreme Court</a>. Superior, ordinary, and probate courts continued in each of Georgia's counties, as did the elections of justices of the peace and notary publics. Uniform procedures became mandatory for all county courts.</p>
<p>The 1877 Constitution imbued the practice of segregation with the power of law. Article 8 provided for a free education system for Georgians but stipulated separate primary education for whites and blacks, as well as the establishment of a separate university to educate African Americans. In addition, a poll tax was included.</p>
<p>Other notable provisions of the Constitution of 1877 include more stringent residency requirements to vote and to hold public office (in an effort to decrease the power of new Northern residents), the popular election of the <a href="/articles/government-politics/secretary-state">secretary of state</a> and state treasurer, and easier procedures for amending the constitution. Under the 1868 Constitution, two-thirds of each <a href="/articles/government-politics/legislative-process-overview">legislative</a> body needed to approve an amendment in two successive legislative sessions before it was put to a popular vote. The new constitution required the approval of only two-thirds of each house in one legislative session before a popular vote.</p>
<p>The 1877 Constitution was amended 301 times during the sixty-eight years it was in effect. Various changes included the establishment of a literacy test (which served to further disenfranchise African Americans), the formation of the Public Service Commission to regulate utilities, and the creation of the juvenile-court system. On August 13, 1945, the Constitution of 1945 replaced the Constitution of 1877.</p>
</div></div></div><div class="field field-name-field-subcategories field-type-taxonomy-term-reference field-label-above"><div class="field-label">Categories:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/topics/constitutional-history" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Constitutional History</a></div><div class="field-item odd"><a href="/topics/civil-war-reconstruction-events" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil War &amp; Reconstruction Events</a></div></div></div><div class="field field-name-field-further-reading field-type-text-long field-label-above"><div class="field-label">Further Reading:&nbsp;</div><div class="field-items"><div class="field-item even">Melvin B. Hill Jr., &lt;i&gt;The Georgia State Constitution: A Reference Guide&lt;/i&gt; (Westport, Conn.: Greenwood Press, 1994). </div><div class="field-item odd">Ethel K. Ware, &lt;i&gt;A Constitutional History of Georgia&lt;/i&gt; (New York: Columbia University Press, 1947; reprint, New York: AMS, 1967). </div></div></div><div class="field field-name-field-index-title field-type-text field-label-above"><div class="field-label">Index Title:&nbsp;</div><div class="field-items"><div class="field-item even">Constitutional Convention of 1877</div></div></div><div class="field field-name-field-italicize-title field-type-list-boolean field-label-above"><div class="field-label">Italicize title:&nbsp;</div><div class="field-items"><div class="field-item even">no</div></div></div><div class="field field-name-field-georgia-performance-standa field-type-taxonomy-term-reference field-label-above"><div class="field-label">Georgia Performance Standards:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/georgia-performance-standards/ss8h6" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8H6</a></div></div></div>Tue, 20 Dec 2005 19:47:08 +0000jgigantino2578 at http://www.georgiaencyclopedia.orghttp://www.georgiaencyclopedia.org/articles/government-politics/constitutional-convention-1877#commentsGeorgia Bill of Rightshttp://www.georgiaencyclopedia.org/articles/government-politics/georgia-bill-rights
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"> <p>A bill of rights enumerates certain individual liberties and protects those liberties from governmental intrusion, unless there is a sufficiently compelling justification for government action. The Georgia Bill of Rights consists of forty paragraphs, which constitute Article I of the Constitution of 1983. Twenty-eight paragraphs enumerate individual rights, nine deal with the origins of government, and three are devoted to "general provisions."</p>
<p>All of the rights protected by the U.S. Constitution are also protected under the Georgia Bill of Rights. <a href="/articles/government-politics/judicial-branch-overview">Georgia courts</a> play the role of final arbiter as to the meaning of the <a href="/articles/government-politics/georgia-constitution">Georgia Constitution</a>, however. As a result, many provisions of the Georgia Bill of Rights, as interpreted by the state courts, are more protective of individual liberty than textually similar provisions of the Constitution of the United States. Moreover, the Georgia Constitution also includes some liberties that are simply not mentioned by the federal Constitution. For example, the Georgia Constitution protects "Freedom of Conscience," the right not to be abused during arrest or imprisonment, and forbids whipping and banishment as punishment for crimes.</p>
<p>Despite being given free rein to propose changes to the bill of rights, the committee to revise Article I of the Constitution of 1983 generally added very little. Among the few revisions made were grammatical changes and the clarification of liberties that were brought forth from previous Georgia constitutions. Some of these rights originated in the first Georgia Constitution of 1777, while others had emerged as late as 1976. Therefore, an understanding of the various liberties currently protected requires a knowledge of the historical circumstances surrounding the adoption of particular constitutional protections.</p>
<p>Between 1777 and 1861, Georgians lived under four constitutions, none of which contained a comprehensive bill of rights. These constitutions did protect a few individual liberties, however, including freedoms of religion and of the press, the right to trial by jury, and the <a href="/articles/government-politics/writ-habeas-corpus">writ of habeas corpus</a>. These provisions were likely protected because the violation of them by the British was a factor leading to the <a href="/articles/history-archaeology/revolutionary-war-georgia">Revolutionary War</a> (1775-83). These liberties are still protected by the Georgia Bill of Rights today.</p>
<p>The state's first comprehensive bill of rights appeared in the Georgia Constitution of 1861, just after the state had seceded from the Union and joined the Confederacy. The reasons for the emergence of a bill of rights at this point in history have been much debated. One widely accepted theory states that, during the <a href="/articles/history-archaeology/secession">secession</a> crisis, a written bill of rights served as a demonstrative statement to Georgians that their state had not forsaken the fundamental principles upon which the U.S. government was founded.</p>
<p>This bill of rights, entitled "Declaration of Fundamental Principles," was written by <a href="/articles/history-archaeology/thomas-r-r-cobb-1823-1862">Thomas R. R. Cobb</a>. These "principles" added a plethora of rights to the state constitution, including all of the rights then provided for by the Constitution of the United States, as well as some original provisions. In addition to the rights enumerated, the Constitution of 1861 explicitly provided for judicial review and admonished that the enumeration of rights "shall not" be construed to deny other inherent rights of citizens.</p>
<p>The 1861 liberties have proven remarkably stable. Georgia has adopted six constitutions since 1861, but the rights protected have been brought forth into the current bill of rights in essentially the same form, although the wording of the provisions has been modernized along the way.</p>
<p>Since 1861, some rights have been added, primarily as a result of changing social conditions. The Constitution of 1865 added a provision banning <a href="/articles/history-archaeology/slavery-antebellum-georgia">slavery</a>. The Constitution of 1868, adopted during <a href="/articles/history-archaeology/reconstruction-georgia">Reconstruction</a> (1867-76), included Georgia's version of the federal Equal Protection Clause and added several protections, including the prohibition of whipping as the punishment for a crime. Banishment was added to the list of forbidden punishments in the Constitution of 1877. Few notable changes were made to the Constitution of 1945. In 1976 two provisions were added: first, certain property was exempted from levy and sale; and second, recognition of the progress of women's rights was demonstrated by a provision that protects separate spousal property.</p>
<p>These historical developments are embodied in the 1983 bill of rights. Most of the enumerated rights have their origins in the Constitution of 1861, but some can be traced as far back as the Constitution of 1777. Others emerged later as a result of the <a href="/articles/history-archaeology/civil-war-georgia-overview">Civil War</a> (1861-65), Reconstruction, and women's rights. It can be expected that the Georgia Bill of Rights will continue to provide these historical protections, while remaining adaptable to the recognition of new liberties when demanded by social circumstances.</p>
</div></div></div><div class="field field-name-field-subcategories field-type-taxonomy-term-reference field-label-above"><div class="field-label">Categories:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/topics/constitutional-history" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Constitutional History</a></div></div></div><div class="field field-name-field-further-reading field-type-text-long field-label-above"><div class="field-label">Further Reading:&nbsp;</div><div class="field-items"><div class="field-item even">Dorothy T. Beasley, &quot;The Georgia Bill of Rights: Dead or Alive?&quot; &lt;i&gt;Emory Law Journal&lt;/i&gt; 34 (spring 1985). </div><div class="field-item odd">Melvin B. Hill Jr., &lt;i&gt;The Georgia State Constitution: A Reference Guide&lt;/i&gt; (Westport, Conn.: Greenwood Press, 1994). </div><div class="field-item even">Robert N. Katz, &quot;The History of the Georgia Bill of Rights,&quot; &lt;i&gt;Georgia State University Law Review&lt;/i&gt; 3 (fall-winter 1986). </div></div></div><div class="field field-name-field-index-title field-type-text field-label-above"><div class="field-label">Index Title:&nbsp;</div><div class="field-items"><div class="field-item even">Georgia Bill of Rights</div></div></div><div class="field field-name-field-italicize-title field-type-list-boolean field-label-above"><div class="field-label">Italicize title:&nbsp;</div><div class="field-items"><div class="field-item even">no</div></div></div><div class="field field-name-field-georgia-performance-standa field-type-taxonomy-term-reference field-label-above"><div class="field-label">Georgia Performance Standards:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/georgia-performance-standards/ss8cg1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8CG1</a></div></div></div>Fri, 12 Aug 2005 20:08:07 +0000sbratcher2838 at http://www.georgiaencyclopedia.orghttp://www.georgiaencyclopedia.org/articles/government-politics/georgia-bill-rights#commentsGeorgia Constitutionhttp://www.georgiaencyclopedia.org/articles/government-politics/georgia-constitution
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"> <p>State constitutions are best understood with reference to their historical roots. A review of the history of Georgia's ten constitutions provides a synopsis of the political, economic, and social history of the state. Georgia's constitutional history also illustrates the various methods by which a constitution may be written or revised. Georgia has used three different methods of constitutional revision: seven were revised by <a href="/articles/government-politics/constitutional-conventions">constitutional conventions</a>, two by constitutional commissions, and one by the office of legislative counsel of the <a href="/articles/government-politics/georgia-general-assembly">Georgia General Assembly</a>.</p>
<h3>The Constitution of 1777</h3>
<p>Georgia's first attempt at constitutional government was initiated in April 1776 by the Provincial Congress called by the <a href="/articles/history-archaeology/trustee-georgia-1732-1752">Georgia Trustees</a> in response to a series of mass meetings held throughout the colony. This document provided a framework for the transition from colony to state. Soon after Georgia accepted the Declaration of Independence, its first state constitutional convention was organized. Completed in February 1777 and executed without having been submitted to voters for ratification, this constitution remained in effect for twelve years. It vested most governmental authority in a state legislative body, incorporated the separation of powers doctrine, and included a number of basic rights, such as the free exercise of religion, freedom of the press, and trial by jury.</p>
<h3>The Constitution of 1789</h3>
<p>On January 2, 1788, Georgia became the fourth state to ratify the U.S. Constitution. In November of that year, to assure conformity with the federal document, Georgia revised the Constitution of 1777 through a constitutional convention. The shortest of Georgia's constitutions, the Constitution of 1789 was modeled after the U.S. Constitution. Just as the U.S. Constitution responded to weaknesses in the Articles of Confederation, so too did the Georgia Constitution of 1789 respond to weaknesses in the Georgia Constitution of 1777. Generally, the Constitution of 1789 slightly weakened the power of the legislature. It provided for a bicameral legislature, an <a href="/articles/government-politics/executive-branch-overview">executive branch</a>, and a <a href="/articles/government-politics/judicial-branch-overview">judicial branch</a>. The legislature, or <a href="/articles/government-politics/georgia-general-assembly">General Assembly</a>, was elected and had the power to select a <a href="/articles/government-politics/governor">governor</a>, modeled after the U.S. president as the commander of Georgia's military forces. The governor was allowed to serve a two-year term instead of a one-year term. The judicial branch received little attention. Civil liberties protections normally found in a <a href="/articles/government-politics/georgia-bill-rights">bill of rights</a> were also included in this constitution. The brevity of the document, coupled with public outrage over the involvement of state legislators in the <a href="/articles/history-archaeology/yazoo-land-fraud">Yazoo land fraud</a>, made subsequent revision inevitable.</p>
<h3>The Constitution of 1798</h3>
<p>Seven of Georgia's constitutions—those of 1777, 1789, 1861, 1865, 1868, 1877, and 1945—were directly associated with war-related periods; the Constitution of 1798 was one of only three framed completely under peaceful conditions. It was in effect for sixty-three years. Almost twice the length of the previous version, it contained detailed prescriptive measures. Provisions of the former constitution were clarified, and, in light of the Yazoo land fraud, legislative power was more carefully defined. In retrospect, it seems clear that many of the provisions included in this constitution more properly belonged in the state code. Although the legislature continued to be the dominant branch of government, the language used clearly struck a more realistic balance of power among the branches of state government. The governor would now be popularly elected, and a state <a href="/articles/government-politics/supreme-court-georgia">supreme court</a> was authorized (though not established until 1846). Before that point Georgia had relied on the work of local courts with no formal system of review, probably in reaction to the U.S. Supreme Court issuing a ruling unfavorable to the state in <a href="/articles/government-politics/chisholm-v-georgia-1793"><i>Chisholm v. Georgia</i></a> <span style="font-size: 13.008px; line-height: 20.0063px;">in 1793.</span><span style="font-size: 13.008px; line-height: 1.538em;"> Although </span><a href="/articles/history-archaeology/slavery-antebellum-georgia" style="font-size: 13.008px; line-height: 1.538em;">slavery</a><span style="font-size: 13.008px; line-height: 1.538em;"> continued under the 1789 Constitution, the importation of slaves was prohibited after 1798.</span></p>
<h3>The Constitution of 1861</h3>
<p>During the <a href="/articles/history-archaeology/civil-war-georgia-overview">Civil War</a> (1861-65) and <a href="/articles/history-archaeology/reconstruction-georgia">Reconstruction</a> eras, four new constitutions were written by constitutional conventions and approved by the people (<span style="font-size: 13.008px; line-height: 20.0063px;">in 1861, 1865, 1868, and 1877)</span><span style="font-size: 13.008px; line-height: 1.538em;">. The new constitutions represented rapid changes in state governmental control during the war and its aftermath</span><span style="font-size: 13.008px; line-height: 1.538em;">.</span></p>
<p>As a response to concerns that the federal government would outlaw slavery or disturb the delicate balance of slaveholding and nonslaveholding states by admitting New Mexico or California to the Union, a state convention had been assembled at the behest of the state legislature in <a href="/articles/counties-cities-neighborhoods/milledgeville">Milledgeville</a> in 1850. This convention issued a statement of policy that warned of <a href="/articles/history-archaeology/secession">secession</a>, and the <a href="/articles/history-archaeology/georgia-secession-convention-1861">Secession Convention of 1861</a> adopted the Ordinance of Secession. A meeting of seceded states in 1861 adopted the Constitution of the Confederate States of America.</p>
<p>Patterned largely after the Confederate Constitution, the Georgia Constitution of 1861 was the first state constitution to be submitted to the people for ratification. Though earlier constitutions had enumerated only four or five personal liberties, the Constitution of 1861 incorporated a lengthy bill of rights. Adopted as Article 1, much of this portion of the constitution remains a part of the state constitution today. Among other things, the concepts of due process and judicial review were included for the first time.</p>
<h3>The Constitution of 1865</h3>
<p>After the Civil War ended in 1865, Georgia's provisional governor, <a href="/articles/government-politics/james-johnson-1811-1891">James Johnson</a>, called for another constitutional convention. As in other seceded states, this convention was charged with framing a state constitution that would be acceptable to the federal government. The document had to include a repeal of the Ordinance of Secession, the <a href="/articles/history-archaeology/emancipation">abolition of slavery</a>, and a repudiation of the war debt. The Constitution of 1865 was similar to the one of 1861. It continued the bill of rights and made no significant changes to the legislature. But it prohibited slavery and limited the governor to two terms. In a move to provide for further separation of the judicial and executive branches, the Constitution of 1865 provided that judges of all courts—except supreme court and superior court judges, who were selected by the legislature—would be elected by the people. The legislature was authorized to grant county and <a href="/articles/government-politics/municipal-services">municipal</a> authorities the power to tax, a change that enlarged <a href="/articles/government-politics/home-rule-and-ordinances">home rule</a>. In November 1866 the Georgia legislature refused to ratify the Fourteenth Amendment to the U.S. Constitution, a specific condition for readmission to the Union. The Constitution of 1865 was therefore rejected, and Georgia was placed under military control.</p>
<h3>The Constitution of 1868</h3>
<p>After the establishment of congressional Reconstruction and military rule in 1867, a group of elected delegates met in a new convention, which lasted from December 1867 to March 1868. The convention was dominated by northerners and northern sympathizers, but the principal leaders had resided in Georgia long enough to develop an interest in the state's welfare. The makeup of the convention, however, led some to label it the "unconstitutional convention." Major issues debated included the Fourteenth Amendment, qualifications of the electorate (particularly <a href="/articles/government-politics/black-suffrage-twentieth-century">black suffrage</a>), debts and the relief of debtors, and the separation of powers. The relief of debt occupied the most attention, with the final version of the constitution including the first prohibition against imprisonment for debt and amnesty from debts contracted before June 1865. But Congress rejected these clauses, except for debts regarding the price of slaves or assistance with the rebellion.</p>
<p>The bill of rights was expanded, including the substance of the first paragraph of the Fourteenth Amendment. Suffrage was extended to all male citizens. The legislature remained essentially the same, with representation in the house changed to reflect population. The governor's term was increased to four years, with no prohibition against reelection, and the power to pardon was moved from the General Assembly to the governor. The power of the governor to appoint state officials was expanded, the state judicial system was simplified, and the General Assembly was directed to provide a system of free general education to all children of the state. After a dispute regarding the seating of black representatives, Georgia regained its position in the Congress, but it would be 1872 before Georgians participated in a free election for state officers.</p>
<h3>The Constitution of 1877</h3>
<p>As Georgia recovered from the war and Reconstruction, Democrats returned to power in the state, and as the "New South" emerged, support for a new state constitution solidified. A popular vote calling for a <a href="/articles/government-politics/constitutional-convention-1877">constitutional convention</a> provided the final impetus for constitutional revision.</p>
<p>In July 1877, 193 elected members began work on a new state constitution. Working under a committee system and holding extensive debates, the convention completed its work a month later. The document was ratified by the public in December. In response to post-Reconstruction concerns, the new constitution included much more detail in almost all of its articles—restricting both individuals and institutions. Both legislative power and judicial interpretation were limited. As a result of these restrictions the constitution was amended 301 times over its lifetime; some of the amendments were local and temporary. Calls for revision were again inevitable, particularly as the state continued to change and develop.</p>
<h3>The Constitution of 1945</h3>
<p>In 1931 the Institute of Public Affairs at the <a href="/articles/education/university-georgia">University of Georgia</a> published "A Proposed Constitution for Georgia." Though the document was produced for discussion purposes only, it helped to push a call for constitutional revision by the state legislature and Governor <a href="/articles/government-politics/ellis-arnall-1907-1992">Ellis Arnall</a>. As a result the governor appointed a twenty-three-member constitutional commission representing all three branches of government. Approval from the legislature and the voters was required. Working in subcommittees for two years, the commission completed the document in January 1945. Both houses of the General Assembly held public hearings to allow group and individual input. Governor Arnall promoted the inclusion of home rule, a merit system for state employees, and a prison board.</p>
<p>The Constitution of 1945 was ratified by the public in August 1945. It was considered streamlined, with changes confined primarily to the document's form and organization. Approximately 90 percent of the provisions, however, were taken from the Constitution of 1877. Significant changes included the addition of the office of <a href="/articles/government-politics/lieutenant-governor">lieutenant governor</a>, new constitutional officers, the creation of a state board of corrections and a state department of veterans' service, authorization of jury service for women, and an increase in the number of justices in the state supreme court to seven. During the next thirty years the lack of substantive revision led to concerns about both the process and the substance of the Constitution of 1945.</p>
<h3>The Constitution of 1976</h3>
<p>Efforts to revise the Constitution of 1945 began as early as 1963. A revised version drafted by a new revision commission was approved by the General Assembly in 1964 but, because of legal concerns about a malapportioned legislature, was never submitted to the people. Another major effort began in 1969 when the legislature created another constitutional revision commission. The resulting document received the approval of the house, but not the senate, in 1970.</p>
<p><a href="/articles/government-politics/george-busbee-1927-2004">George Busbee</a>, a member of the General Assembly during this failed attempt at revision, became convinced that revision of the entire document at once was too difficult. In 1974 he ran for governor, calling for an article-by-article revision. After he was elected, he requested that the office of legislative counsel prepare a "new" constitution for submission to the voters in the 1976 election. The office's charge was only to reorganize the document, and not to make substantive changes. The revised document was easily passed by the state legislature and ratified by the Georgia voters. Although this revision did not produce substantive changes, it paved the way for a more thorough revision of the constitution.</p>
<h3>The Constitution of 1983</h3>
<p>In 1977, after the ratification of the 1976 Constitution, the General Assembly created the Select Committee on Constitutional Revision. Members included the governor as chair, the lieutenant governor, the speaker of the house, the <a href="/articles/government-politics/attorney-general">attorney general</a>, and representatives from the judiciary as well as both houses of the legislature. Beginning in 1977, the committee members agreed to a total revision. Each article would be drafted and approved individually by the Select Committee and the General Assembly. After a series of lengthy public meetings, agreement on a proposed new constitution was reached in late August 1981. The document was submitted to the General Assembly in an August/September 1981 special session convened to consider both reapportionment and constitutional revision. On September 25, 1981, the General Assembly approved the new constitution. Amended at the 1982 session of the legislature, the proposed constitution was submitted to the voters for ratification at the 1982 general election. Supported by leadership from all three branches of state government and bolstered by a strong effort to educate the public about its content, the Constitution of 1983 was overwhelmingly approved by voters and became effective on July 1, 1983.</p>
<p>The rallying cry of the Select Committee on Constitutional Revision had been "brevity, clarity, flexibility." The final product reflected this goal. The 1983 constitution was about half as long as the 1976 Constitution; it was better organized and used simple modern English in place of arcane and cumbersome terminology. It gave the General Assembly greater flexibility to deal by statute with many matters that had been covered in the constitution itself. The most significant change between the Constitutions of 1976 and 1983 was that the latter document prohibited the inclusion of any further constitutional amendments relating to only a particular <a href="/articles/government-politics/georgias-city-governments">city</a>, <a href="/articles/government-politics/georgias-county-governments">county</a>, or other local political subdivision.</p>
<p>The 1983 Constitution was the first truly "new" constitution since 1877. It was the culmination of almost twenty years of discussion, debate, and compromise. A mixture of old and new, it contained provisions that first appeared in the Constitution of 1877 and also incorporated other provisions that had never existed before, such as the division of the courts into seven distinct classes, a requirement for uniform court rules <span style="line-height: 20.0063px;">and</span><span style="font-size: 13.008px; line-height: 1.538em;"> record-keeping rules by class for all classes of courts, the nonpartisan election of judges, and </span><span style="font-size: 13.008px; line-height: 20.0063px;">an equal protection clause</span><span style="font-size: 13.008px; line-height: 1.538em;">. Like the nine constitutions preceding it, the Constitution of 1983 was, and is, a reflection of the state's rich political and social history.</span></p>
</div></div></div><div class="field field-name-field-subcategories field-type-taxonomy-term-reference field-label-above"><div class="field-label">Categories:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/topics/constitutional-history" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Constitutional History</a></div></div></div><div class="field field-name-field-further-reading field-type-text-long field-label-above"><div class="field-label">Further Reading:&nbsp;</div><div class="field-items"><div class="field-item even">Melvin B. Hill Jr., &lt;i&gt;The Georgia State Constitution: A Reference Guide&lt;/i&gt; (Westport, Conn.: Greenwood Press, 1994).</div><div class="field-item odd">Ethel Kime Ware, &lt;i&gt;A Constitutional History of Georgia&lt;/i&gt; (New York: Columbia University Press, 1947).</div></div></div><div class="field field-name-field-index-title field-type-text field-label-above"><div class="field-label">Index Title:&nbsp;</div><div class="field-items"><div class="field-item even">Georgia Constitution</div></div></div><div class="field field-name-field-italicize-title field-type-list-boolean field-label-above"><div class="field-label">Italicize title:&nbsp;</div><div class="field-items"><div class="field-item even">no</div></div></div><div class="field field-name-field-georgia-performance-standa field-type-taxonomy-term-reference field-label-above"><div class="field-label">Georgia Performance Standards:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/georgia-performance-standards/ss8cg1" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8CG1</a></div><div class="field-item odd"><a href="/georgia-performance-standards/ss8cg2" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8CG2</a></div><div class="field-item even"><a href="/georgia-performance-standards/ss8h4" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8H4</a></div><div class="field-item odd"><a href="/georgia-performance-standards/ss8h8" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">SS8H8</a></div></div></div><div class="field field-name-field-common-core-standards field-type-taxonomy-term-reference field-label-above"><div class="field-label">Common Core State Standards:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/common-core-state-standards/elacc6-8rh5" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">ELACC6-8RH5</a></div></div></div>Mon, 12 Aug 2002 16:33:59 +0000mhill4234 at http://www.georgiaencyclopedia.orghttp://www.georgiaencyclopedia.org/articles/government-politics/georgia-constitution#comments